People on Relation of Port Petroleum Corp. v. Atlantic Coast Terminals

• Decision Date: 09 July 1956
• Citation: 2 A.D.2d 153,153 N.Y.S.2d 913
• Parties: The PEOPLE of the State of New York, on relation of PORT PETROLEUM CORPORATION, Plaintiff-Respondent, v. ATLANTIC COAST TERMINALS, Inc., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 913

153 N.Y.S.2d 913

2 A.D.2d 153

The PEOPLE of the State of New York, on relation of PORT

PETROLEUM CORPORATION, Plaintiff-Respondent, v. ATLANTIC COAST TERMINALS, Inc., Defendant-Appellant.

Supreme Court, Appellate Division, Third Department.

July 9, 1956.

Lawrence R. Condon, New York City (John R. Lazenby, New York City, F. Walter Bliss, Warner M. Bouck, Albany, of counsel), for appellant.

Jacob K. Javits, Atty. Gen. (Edward L. Bookstein, Sp. Asst. Atty. Gen., of counsel), for respondent.

Before FOSTER, P. J., and BERGAN, COON, ZELLER and GIBSON, JJ.

ZELLER, Justice.

The sole issue on this appeal is whether the State of New York, when plaintiff in an action in Supreme Court, may be required, through its officers and agents, to submit to an examination before trial requested by the defendant. This action was brought by the State pursuant to section 138 of the Public Lands Law to vacate and annul letters patent previously granted by the State to defendant-appellant's predecessor in title. In conformity with section 1203 of the Civil Practice Act, the title of this action indicates that it has been brought upon relation of Port Petroleum Corporation but this does not change the fact that the State is the plaintiff seeking affirmative relief because of an alleged mistake of fact.

Section 288 of the Civil Practice Act authorizes a party to take by deposition before trial the testimony of 'any other party'. The forerunner of this section was early construed as authorizing the pretrial examination only of a party in person and to exclude such examination of a party's agent or employee. People v. Mutual Gas Light Co. of Brooklyn, 74 N.Y. 434; Boorman v. Atlantic & P. R. Co., 78 N.Y. 599. Hence, there could be no examination of a corporate party. This interpretation prompted the enactment of what is now section 289 of the Civil Practice Act which provides that the testimony of a corporation or association may be taken by examining one or more of its officers, directors, agents or employees.

For many years it was consistently held that the portions of section 288 permitting a party to examine before trial 'any other party' did not authorize the examination of a municipal corporation. Davidson v City of New York, 1917, 221 N.Y. 487, 116 N.E. 1042; Bush Terminal Co. v. City of New York, 1932, 259 N.Y. 509, 182 N.E. 158; Kasitch v. City of Albany, 1940, 283 N.Y. 622, 28 N.E.2d 30; Rucker v. Board of Education of City of New York, 1940, 284 N.Y. 346, 31 N.E.2d 186. In 1941 section 292-a of the Civil Practice Act was added, L.1941, ch. 921, which authorizes the court to order the taking by deposition of the testimony of officers, agents and employees of public corporations.

In Friedman v. State, 250 App.Div. 809, 294 N.Y.S. 460, it was held that section 288 did not permit the examination before trial of employees or agents of the State in a claim pending in the Court of Claims. 161 Misc. 358, 292 N.Y.S. 90. Shortly thereafter, the Legislature employees the court to order such examination. Court of Claims Act § 17, subd. 2, as added by Laws of 1939, ch. 860.

The only reported case in which a party in a Supreme Court action sought to examine the agents and employees of the State, where it was the adverse party, resulted in a denial of the motion. Mr. Justice Foster, sitting at Special Term in 1943, predicated the denial upon the ground that the Legislature had not given its permission for an examination before trial of State employees in an action pending in the Supreme Court brought by a state agency. Commissioners of State Insurance Fund v. Lapidus, 182 Misc. 368, 50 N.Y.S.2d 589.

Thus, the history of the decisions shows that a very conservative construction has been put on the portion of section 288 which authorizes a party to take the testimony before trial of 'any other party'. In several instances, legislation has enlarged the scope of the section but there has been no legislation authorizing the examination of the State through its officers and employees when the State is a party plaintiff. In the absence of such legislation, we are constrained to hold that authority does not exist to direct the examination here sought.

In addition to permitting the examination before trial of a party at the request of any other party, section 288 authorizes a party to take pretrial testimony from 'any other person, which is material and necessary, where such person is about to depart from the...